JOBNAME: No Job Name PAGE: 85 SESS: 21 OUTPUT: Wed Aug 1 21:34:08 2018 /journals/journal/ajfl/vol32pt1/part_1 Australian family property law: ‘Just and equitable’ outcomes? Belinda Fehlberg and Lisa Sarmas* In this article we focus on the broad discretion under Australia’s Family Law Act 1975 (Cth) to reallocate interests in property of spouses and separating de facto partners. We look at previous empirical research on the discretion’s operation and consider options for change. We identify that there is a lack of up-to-date empirical research data on the discretion’s operation, and that there is potential risk and possibly limited effect associated with legislative reform in this area. Yet the consistent empirical research finding that women, particularly mothers with dependent children, experience significant economic disadvantage post-separation leads us to see some merit in legislative reform that identifies the need to provide for the material and economic security of the parties and their dependent children as key factors to be considered when making property orders. I Introduction Our article examines the broad discretion under Australia’s Family Law Act 1975 (Cth) (‘FLA’) to reallocate interests in property of spouses and, since 2009, separating de facto partners1 in the light of previous empirical research on the discretion’s operation. Although acknowledging the lack of up-to-date empirical research data on the discretion’s operation, and the potential risks and possibly limited effect of legislative reform, the consistent empirical research finding that women, particularly mothers with dependent2 children, experience significant economic disadvantage post-separation prompts us to formulate a proposal for legislative change that identifies the need to provide for the material and economic security of the parties and their dependent children as key factors to be considered when making property orders. We * The authors are colleagues at Melbourne Law School, University of Melbourne. This article forms part of a shorter piece to appear in The Cambridge Companion to Comparative Family Law, to be edited by Shazia Choudry and Jonathan Herring, and to be published by Cambridge University Press. Thanks to the Cambridge Seminar participants, Patrick Parkinson and the anonymous reviewers for valuable feedback on earlier drafts of this article. 1 ‘De facto relationship’ for the Family Law Act 1975 (Cth) (‘FLA’) is defined as a couple (different sex or same sex), who are not legally married to each other, are not related by family, and have had ‘a relationship as a couple living together on a genuine domestic basis’ (s 4AA(1)). For financial orders, the FLA also requires a de facto relationship of at least 2 years’ duration, a child of the relationship, or that a party has made substantial contributions such that a failure to make an order would lead to serious injustice (s 90SB). See further Belinda Fehlberg et al, Australian Family Law: The Contemporary Context (Oxford University Press, 2015) 20–2, 91–8, 495–6. 2 Which we define as children of the parties aged under 18, and children of the parties aged over 18 who are completing their education or have a mental or physical disability (consistent with FLA s 66L which provides for court-ordered maintenance for children over 18 in these circumstances). While the current financial provisions of the FLA refer only to children of the parties aged under 18 (eg, ss 72(1), 75(2)), we consider that an extension paralleling s 66L is warranted. 81 JOBNAME: No Job Name PAGE: 86 SESS: 21 OUTPUT: Wed Aug 1 21:34:08 2018 /journals/journal/ajfl/vol32pt1/part_1 82 (2018) 32 Australian Journal of Family Law suggest that the structure of the current legislation places too great a focus on the parties’ contributions and that a reformulation to prioritise the provision of suitable housing for dependent children, followed by consideration of the parties’ material3 and economic security would increase the likelihood of outcomes that are more fundamentally consistent with the key legislative requirement that ‘[t]he court shall not make an order ... unless it is satisfied that, in all the circumstances, it is just and equitable to make the order’.4 There are several reasons why it seems important to focus on Australian family property law now. In May 2017, the Australian federal Attorney-General announced a major review of the family law system, to be undertaken by the Australian Law Reform Commission. The inquiry is now underway, and the final report is due by 31 March 2019. The Inquiry’s widely-cast terms of reference include ‘the underlying substantive rules and general law principles in relation to ... property’.5 Inclusion of property is significant given that Australian family property law has not been the subject of major law reform proposals since 1999.6 Lack of law reform attention has been striking — and concerning given that the adverse economic consequences of separation and divorce for women in the short and longer term continue to be identified by Australian empirical research (Section III (A)),7 due mainly to their still greater role as the primary carers of children during and after heterosexual relationships end.8 These consequences are known to be particularly serious for some groups of women, especially mothers with dependent children (but also older divorced mothers whose children are no longer dependent: a smaller group that has received less 3 We have included the concept of ‘material’ as well as ‘economic’ security on the basis that ‘economic security’ tends to be understood as meaning financial security. Put another way: ‘[m]aterial wellbeing is a broader concept’ and ‘income measures alone are insufficient to properly understand poverty — or ... a life with dignity’: see, eg, Tanya Corrie, ‘Economic Security for Survivors of Domestic and Family Violence: Understanding and Measuring the Impact’ (Good Shepherd Australia New Zealand, 2016) 37. Further elaboration of the precise elements that constitute material, as distinct from economic, security is beyond the scope of this article, but might include, eg, a safe home for a party escaping family violence. 4 FLA s 79(2) or s 90SM(3). 5 George Brandis, Attorney-General (Australia), ‘First Comprehensive Review of the Family Law Act’ (Media Release, 27 September 2017). An issues paper released by the Australian Law Reform Commission (‘ALRC’) in March 2018 noted that ‘[a] number of suggestions have been made for changes to the Family Law Act’s property regime’: ALRC, Review of the Family Law System, Issues Paper No 48 (2018) 48 [152]. 6 Commonwealth (Australia), ‘Property and Family Law: Options for Change’ (Discussion Paper, 30 March 1999). On earlier proposals for reform, see Margaret Harrison, ‘Matrimonial property reform’ [1992] (31) Family Matters 18. 7 Eg, David de Vaus et al, ‘The Economic Consequences of Divorce in Australia’ (2014) 28 International Journal of Law, Policy and the Family 26. 8 Eg, Australian Institute of Family Studies (‘AIFS’), ‘Mothers still do the lion’s share of housework’ (Research Summary, AIFS, 2016): ‘Becoming a mother heralds a dramatic change in the lives of Australian women. New mothers go from spending a weekly average of 2 hours caring for others to a whopping 51 hours’; Lixia Qu et al, ‘Post-separation parenting, property and relationship dynamics after five years’ (Report, AIFS, 2014): ‘Most children were in the care of their mother for the majority of nights or all nights per year (ie, 66–100 per cent of nights) in each wave, with around three-quarters being in such an arrangement in Wave 3’: at xvi. See further Belinda Fehlberg, Lisa Sarmas and Jenny Morgan, ‘The Perils and Pitfalls of Formal Equality in Australian Family Law Reform’ (2018) 46 Federal Law Review (in press). JOBNAME: No Job Name PAGE: 87 SESS: 21 OUTPUT: Wed Aug 1 21:34:08 2018 /journals/journal/ajfl/vol32pt1/part_1 Australian family property law 83 research focus),9 victims of family violence10 and women leaving low-asset relationships.11 Private transfers alone cannot be expected to fully resolve post-separation poverty12: ‘people who divorce have substantially lower incomes, assets, and employment rates pre-divorce than people who remain married’,13 two households will be more expensive to run than one, and commonly pre-separation family arrangements will result in one party having a much reduced income earning capacity. However, property division under the FLA remains an important strategy for reducing post-separation financial disadvantage.14 Clearly, in order to maximise the potential of this strategy, law and the family law system15 need to be accessible and responsive. After many years of significant research, policy, and law reform focus on post-separation parenting law and process16 (including the relevance of family violence and abuse in this context,17 along with the operation of the Child Support Program),18 it is timely to also reflect on the operation of the key principles guiding property division in Australian family law. 9 Susan Feldman and Harriet Radermacher, ‘Time of Our Lives? Building Opportunity and Capacity for the Economic and Social Participation of Older Australian Women’ (Report, Lord Mayor’s Charitable Foundation, 2016) 21–2; Bruce Smyth and Ruth Weston, ‘Financial living standards after divorce: A recent snapshot’ (Research Report No 23, AIFS, December 2000). In Britain, see Mike Brewer and Alita Nandi, ‘Partnership dissolution: how does it affect income, employment and well-being?’ (Working Paper No 2014-30, Institute for Social and Economic Research, University of Essex, 10 September 2014). 10 Grania Sheehan and Bruce Smyth, ‘Spousal Violence and Post-separation Financial Outcomes’ (2000) 14 Australian Journal of Family Law 102; Emma Smallwood, Stepping Stones: Legal Barriers to Economic Equality after Family Violence (Women’s Legal Service (Vic), 2015); Rae Kaspiew and Lixia Qu, ‘Property division after separation: Recent research evidence’ (2016) 30 Australian Journal of Family Law 1.